The Blog of the NJ Civil Justice Institute

Tuesday, April 06, 2010

3rd Circuit Court of Appeals: “Defective Sperm” can’t be the basis for a product liability lawsuit

While it makes for a good headline, the 3rd
Circuit Court of Appeals decision in Donovan v. Idant
Laboratoriesisn’t a laughing matter for the parties involved.The plaintiff, Pennsylvania resident Donna
Donovan, sought services from New York-based Idant Laboratories in 1994 after
being assured that prospective sperm donors undergo rigorous screening which
greatly exceeded mandated standards.

Donovan’s daughter, Brittany, was born two years later.She was diagnosed as a “Fragile X” carrier
the following year by the family’s physician, and Donovan stated that she
noticed abnormalities in her daughter’s development.“Fragile X” is a genetic mutation which is
known to cause an array of developmental disabilities, including mental
retardation and behavioral disorders.Brittany inherited it from the sperm used to conceive
her.

The plaintiff’s lawyers contend that sperm (at least when
purchased from a sperm bank) is a product.At issue is whether the sperm bank should be liable for the quality of
its product and be obliged to financially support the effects of a mutation on
the conceived “victim.”

Writing for The
Legal Intelligencer, Shannon Duffy reports that the Court found that
“genetic defects in sperm from a sperm bank cannot form the basis for a
products liability suit.” Allowing such
a claim “would be tantamount to recognizing a claim of ‘wrongful life.’”

The suit wasn’t filed until a decade after the child’s
birth.In addition to exceeding an
acceptable timeframe, the Court rejected the plaintiff’s inference that the
child’s “genetic makeup” is her injury.

The plaintiff doesn’t explicitly state that she would have had
an abortion if she knew of the sperm’s deficiency.

The initial case appeared before U.S. District Judge Thomas
O’Neill Jr., who initially ruled in favor of the plaintiff, stating that “the sale of sperm is
considered a product and is subject to strict liability.”He reversed himself two months later and
dismissed the case entirely, recognizing that it would open “wrongful life”
issues, and that significant time had elapsed since the mutation was
discovered.

The appellate Court’s decision was wise.At what point does personal imperfection
become an injury for which another must be held accountable?